Mary Wright Juarez v. Gilbert E. Juarez ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Elder and Fitzpatrick
MARY WRIGHT JUAREZ
v. Record No. 1340-95-2 MEMORANDUM OPINION *
PER CURIAM
GILBERT E. JUAREZ FEBRUARY 13, 1996
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
(Mary Wright Juarez, pro se, on briefs).
(Richard F. Papcun, on brief), for appellee.
Mary Wright Juarez (mother) appeals the decision of the
circuit court granting sole custody of her three youngest
children to Gilbert E. Juarez (father). Mother argues that there
was insufficient evidence to (1) deny her request to change
custody of Kathleen and Mark from father to mother; (2) justify
changing custody of John from mother to father; and (3) deny all
visitation by mother with Kathleen, Mark and John. Upon
reviewing the record and briefs of the parties, we conclude that
this appeal is without merit. Accordingly, we summarily affirm
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the decision of the trial court. Rule 5A:27.
On appeal, we review the evidence in the light most
favorable to the prevailing party below. Peple v. Peple, 5 Va.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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Our decision on the issues raised by mother in her appeal
makes it unnecessary for us to address the additional questions
raised by father.
App. 414, 422, 364 S.E.2d 232, 237 (1988). The trial court
received the evidence by ore tenus testimony of the parties and
their witnesses and through depositions. Its order is presumed
correct and will not be overturned if it is supported by
substantial, competent and credible evidence. See Collier v.
Collier, 2 Va. App. 125, 127, 341 S.E.2d 827, 828 (1986).
Custody of Kathleen and Mark
The parent seeking to change custody bears the burden of
proving that there has been a change in circumstances since the
most recent custody award and that the best interests of the
child warrant a change in custody. Keel v. Keel, 225 Va. 606,
611, 303 S.E.2d 917, 921 (1983). Thus, mother bore the burden to
prove that a change in circumstances had occurred which warranted
granting her custody of Kathleen and Mark. The trial court found
there was evidence of an improvement in mother's ability to
maintain a job and a home. However, the court noted that mother
continued to question her children concerning her unsubstantiated
allegations of sexual abuse by father, despite a finding by
Chesterfield Social Services that mother's questioning
constituted emotional abuse. Contrary to court order, mother
continued to question John about sexual abuse by father,
continued to call Kathleen and Mark almost daily, and continued
to attempt to visit with Kathleen and Mark by arriving at
father's home and refusing to leave.
While Kathleen and Mark have been in father's custody, they
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have participated in activities and done well in school. The
court found that the children were "physically and emotionally
thriving in [father's] full custody" and that father "has
provided a stable environment for these children." The court's
conclusions were fully supported by substantial, competent and
credible evidence. Therefore, we cannot say the trial court
erred or abused its discretion in denying mother's petition to
change the custody of Kathleen and Mark to herself.
Custody of John
The evidence established that mother had a close
relationship with John and was attentive to his needs. However,
mother admitted that she had questioned John regarding her
allegations of sexual abuse, contrary to court order.
Moreover, as noted above, mother's questioning regarding her
allegations of sexual abuse was found to constitute emotional
abuse of Kathleen and Mark. Among other incidents, mother taped
a conversation she had with Kathleen and Mark which mother argued
demonstrated father had abused them. The children, however, told
their counselor that mother would spank them if they failed to
answer her questions the way she wanted them to. Neither
Kathleen or Mark appeared to be emotionally bonded with mother.
The court found that mother's persistent questioning of the
three children concerning her allegations of sexual abuse was a
negative change in mother's circumstances. The questioning
amounted to emotional abuse of the children, and was "clearly not
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in the best interest of the children."
Substantial, competent and credible evidence supports the
decision of the circuit court that a negative change in
circumstances warranted transferring custody of John from mother
to father. Therefore, we cannot say that the court abused its
discretion in transferring custody.
Denial of Visitation
The trial court denied mother all visitation, noting however
that it "will be amenable to hearing from [mother] in a
subsequent proceeding regarding any proposed plan of hers for
supervised visitation, including times, places of visitation, and
the supervisor of such visitation." The record demonstrated that
mother had violated previous court orders barring her from
questioning the children about the alleged sexual abuse, and had
refused to abide by previous court-ordered limitations on
visitation. In light of the risk to the children's emotional
well-being demonstrated by mother's past actions, we cannot say
the trial court abused its discretion in denying mother
visitation until a plan for supervised visitation was approved.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
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